CORAL SPRINGS, Florida—Gary M. Landau, a leading South Florida real estate attorney with over 25 years of experience, urges homeowners and future homeowners to be sure their spouse is added to their home’s title even if they are not on the mortgage note. This is important for every couple–but is especially so when a spouse has children from a prior marriage.
Many couples mistakenly think that because they’re married their spouse will inherit their house when they pass away. But this is only the case when the spouse is jointly recorded on the deed.
The state of Florida does offer a spouse who is not on the deed special considerations for their primary residence. But problems can still arise, especially if the spouse named alone on the deed has children from a prior marriage.
Should the named spouse pass away, the surviving spouse who is not named on the deed cannot simply keep the home or decide to sell it. Instead, the law allows them to opt (within six months of the person’s death) to take a 50 percent share of the home. If they choose not to do that, they are entitled to a life estate, a legal arrangement where they can stay in the home as long as they want to, including for life.
However, while a life estate confers the right to use the property, the spouse cannot transfer or sell the home without permission from the deceased spouse’s children. If the spouse does not want to remain in their house, he or she can sell it with permission, splitting the proceeds.
If the home under discussion is not a primary residence, the living spouse has even more limited rights to the property.
Primary homes are granted that extra protection due to Florida’s Homestead Exemption, a law pertaining to primary residences in the state. Having homestead on the property, for example, protects the residence from certain creditor claims. It also reduces property taxes, allowing Florida residents to claim up to $50,000 in exemptions from the assessed value of their homestead residence. (To qualify for this exemption, an individual must own and use the home as a primary residence starting January 1st of the year they apply. The exemption applies to all ad valorem taxes, including school district taxes.)
Landau has seen first-hand how spouses can be blindsided after their partner dies and they are not listed on the deed. He recently had a client in this exact situation. The property was her primary residence, and she and her spouse lived there for years. But after he passed away she wanted to move. Her husband’s children from a first marriage, however, were now legally entitled to half the house. And they did not want the home to be sold.
Because the woman was not listed on the deed, his family was able to block the sale, so she was forced to continue living in the home while our law firm negotiated with his children. After several months, they eventually allowed the sale.
“Checking that your spouse is on the title, and adding them if they are not, ensures they will have full rights to the home should their partner unexpectedly pass away. I encourage Florida homeowners to learn from my clients’ troubling experiences and add their spouses to their home’s titles to avoid future problems,” Landau says.
“Had my widowed client been listed on the deed, she could have sold her home right away. Instead, while grieving the loss of her husband she also had the aggravation over her home’s ownership. This illustrates the importance of protecting your spouse from future disputes over the place they call home.”
If your spouse is not currently listed on the deed, an experienced real estate attorney can add them. If you are buying or refinancing a home, talk to your closing attorney about the importance of ensuring your spouse is listed.
“An attorney can help you understand the potential consequences of not having both names on the title and can guide you through the process to avoid problems down the road,” Landau says.
For more information, visit https://garylandau.com/.
About the LAW OFFICE of GARY M. LANDAU, P.A.
With more than 25 years of experience and countless satisfied clients, Gary M. Landau and his team are uniquely positioned to help you with your probate and real estate needs in South Florida. Whether you’re ready to probate a loved one’s estate or to write your own will, or if you are purchasing a home, have inherited a home, or want a closing agent to handle title insurance and all documents for your closing or refinancing, the Law Office of Gary M. Landau is ready to work with you.
Call our office at (954) 979-6566 or complete our online form today to schedule a free consultation. We work with our clients in person, over the phone, or on Zoom.